Citation Numbers: 1 S.E.2d 372, 215 N.C. 150
Judges: SEAWELL, J.
Filed Date: 3/1/1939
Status: Precedential
Modified Date: 1/13/2023
CLARKSON, J., dissenting. On or about the 15th day of October, 1934, H. A. Smith died, leaving a last will and testament, in which he left a legacy of a $35,000.00 note to James F. Brawley, a stranger in blood to the testator. The will was duly probated in common form, and thereafter, the defendants, heirs at law and distributees of the estate of H. A. Smith, who would be entitled *Page 152 to the estate had Smith died intestate, filed a caveat to the will. The plaintiffs, who also would have been entitled as distributees under the statute in the same manner and form as the defendants, were cited under C. S., 4158 as interested persons.
The defendants (objectors and caveators) communicated with the plaintiffs in the case at bar and were notified by them that they had decided to have nothing to do with the contest of the will — "We have decided not to join in this litigation or caveat."
The plaintiffs contributed nothing, financially or otherwise, to the proceeding by which the will was contested. They were never required, under C. S., 4159, to take sides, and remained aloof. Subsequently, the legatee opened communication with these defendants and a compromise was effected between them, according to which the legatee paid the defendants $15,000.00 in consideration of their withdrawal from the contest. The plaintiffs did not participate in this agreement.
Thereupon, the proceeding, which under the statute took the form of a probate of the will in solemn form, was continued, and issue of devisavitvel non was submitted to the jury, and answered in favor of the will, and judgment was entered accordingly.
After this proceeding had terminated, the plaintiffs, conceiving that since they constituted one-third of the heirs at law or distributees of the estate of H. A. Smith under the statutes of descent and distribution, they were entitled to share, brought suit against the defendants to recover $5,000.00, or one-third of the proceeds of the compromise. Trial by a jury was waived by the parties to the controversy. The facts were agreed upon and found by the judge substantially as above related, and, thereupon, the judge concluded, as a matter of law, that the plaintiffs were entitled to one-third of the proceeds of the compromise and rendered judgment in favor of the plaintiffs for recovery thereof. From this judgment the defendants appealed. We think the conclusions of law reached by the trial court are not warranted by the facts. These conclusions, with the reasoning by which they were apparently reached, are two: First, that because there was objection to the will by some of the heirs at law of H. A. Smith, and the plaintiffs are also heirs at law, and a compromise was made removing the objections, and the will was thereafter probated in solemn form and was sustained by a verdict of the jury and the judgment of the court cutting off all further objections, they are, by reason *Page 153 of these facts, entitled to a proportionate share of the money paid for the "cease and desist" agreement made by the caveators; second, that, being fully entitled thereto, they are not guilty of any conduct which would estop them from enforcing that right.
We are not concerned with the second conclusion, since the burden was not on the defendants to show estoppel until the plaintiffs had established the right; and this they have not done. It is to be noted that plaintiffs base this right, not on any actual contract or agreement with the defendants, express or implied, since, admittedly, the facts do not warrant such a claim, but on the mere operation of law. It assumes either that the compromise money was a part of decedent's estate or that, at least, the consent of plaintiffs was necessary to the final determination of the contest over the will, since they are also "heirs at law" and cited in the proceeding; and in either event we come back under the shadow of descent and distribution.
We think these conclusions are based on an erroneous conception of the nature of the original proceeding under which, after caveat, the will was probated in solemn form, and of the relation of the parties concerned to that proceeding, to the legatee and propounder, and to each other. Since there is no evidence of an actual participation by the plaintiffs in the compromise or contract between these defendants and Brawley, the legatee, the trial court was evidently under the impression that consent of all the persons who might have been interested in the estate was necessary to the establishment of the will once objection thereto had been made by caveat, and that any compromise effected must necessarily include all such persons; and that, therefore, the compromise must, as a matter of law, be regarded to have been made for them all alike. Indeed, the principal case cited by plaintiffs in support of their contention, In re Seip's Estate,
In some jurisdictions the courts are permitted, either by virtue of statutes enacted for that purpose or by long practice of the court, to deal with the estates of decedents in practical disregard of the will when all the parties interested are before the court and are sui juris. Callaghan v.Corbin,
It is claimed that the case at bar is one of first impression by our court. However this may be, we think the matter solvable by the application of simple principles, long recognized here and abundantly established by judicial opinion. *Page 154
The right of any caveator or objector to make his separate treaty of peace with legatees or propounders upon such terms as may be agreed upon is uniformly recognized, as will appear from citations of authority elsewhere in this opinion. The reason becomes clear when we examine and properly understand the proceeding provided by our laws for the contest of wills and their probate in solemn form.
In this State it takes only one interested person to caveat a will. C. S., 4158; In re Thompson,
Caveat is, therefore, not a proceeding brought in the interest of the heirs at law as a class. In many instances they would be embarrassed in financial interest and in others in good conscience at the breaking of the will. There is no plane of cleavage in interest that would justify a legal presumption that the heirs at law are making a common fight, and the statute does not contemplate it. Hutson v. Sawyer,
While the solemn probate of a will upon the issue of devisavit vel non concludes all heirs and distributees who have been cited, or who have knowledge of the proceeding, with respect to the property conveyed in the will, Mills v. Mills, supra, they have not been deprived of any right by the action of the withdrawing caveators, but only by their own failure to urge it or assert it when opportunity was presented. If the will stands, it must be regarded as valid ab initio, and they had no rights to be forestalled or concluded.
This State does not recognize the doctrine of partial renunciation whereby the estate may pass in part by the will and the renounced portion by descent.
It must be conceded that if the title to the money paid in compromise depends upon the contract, it cannot be diverted from those who made that contract by virtue of any power in the laws of descent and distribution, or upon the theory that the contract, to be successful in its purpose, must have been made by them all.
As stated, in some states, when all the parties are sui juris and before the Court, jurisdiction is given by statute to settle the controversy in terms which ignore the will, or, rather, under these statutes a compromise of the estate itself may be effected as if only the property rights in the estate were involved. (New York has such a statute in section 19 of the Decedent Estate Law.) The courts of some states have gone further and recognize such a jurisdiction, based on the inherent powers of the court. Neither is true in North Carolina, where the courts still decline to "make a will" for the decedent, agreeable to the desire of the parties interested; In re Will of Westfeldt,
In English v. Crenshaw,
In Fidelity C. Trust Company v. Commonwealth of Kentucky, 78 A.L.R., 710, it is said: "Whilst the legatees could not receive the property under the will until it was duly established, neither could the heirs inherit the property unless the will was set aside." And speaking of the caveator: "While his right to maintain the contest of the will is derived from his relationship to the testator, his title to the money came from the contract with the legatees."
In Callaghan v. Corbin,
In Grochowski v. Grochowski (Neb.App.),
Quoting from People v. Kaiser, supra: "The share of the estate passing to the heirs by virtue of the agreement did not pass by virtue of the statute of descent or by virtue of the will, but under the agreement." SeeBaxter v. Treasurer and Receiver-General,
We think the law of this case is aptly expressed by the Court in Janessv. Ambler,
It is strongly urged that the equitable jurisdiction of this Court is involved upon the apparent assumption that the distribution demanded by the plaintiffs is required, according to the statutes of descent and distribution; In re Seip, supra. We think the case comes under the *Page 158 law of contract, but whether resting in law or equity, we see no difference between the two in terms of equality and justice.
Perhaps jurisprudence might be richer if we could forget the fictional build-up of repugnance between law and equity which now and then tries to suffuse the law with the pink of shame; if we ceased to regard equity as a beneficent jus superior which, on occasion, throws delinquent law out of the temple and installs a new god. Since, in this State, both law and equity are administered in the same action and in the same court, the historical distinction might be reduced to the function of enlightenment, and thus become absorbed in the law. Equity is merely the tool by which the law is enabled more perfectly to trace the finer lines in the pattern of justice. It is neither altruistic nor prodigal, simply just. We do not feel inclined to impose upon the defendants in this case a generosity which these principles, which are after all but an adjustment of individual right to commendable human conduct, do not seem to require.
On the barren outer banks of Eastern North Carolina, the race of "banks ponies" has survived for two hundred years against the forces of nature with little or no help from man. Their tenacity of existence is heroic. They foal their kind upon the stark bosom of nature with a faith that reminds one of Sidney Lanier's "The Marshes of Glynn:"
"As the marsh-hen secretly builds on the watery sod, I will build me a nest on the greatness of God."
These little animals have learned many tricks of survival. It is said that when they are thirsty they gather in groups of three or four and dig until the water filters through in sufficient quantity. If a pony who has not assisted in their labors comes up for a free drink, they turn their heels upon him and drive him away. This is equity on Ocracoke.
Defendants in this case can derive their right to the funds in controversy through a contract, in which the plaintiffs had no part. Counsel whose name appear on the pleadings and judgment do not purport to represent the plaintiffs; the caveators were not either actually or impliedly their agents; and they had directly repudiated the whole proceeding in the positive statement: "After due consideration, we have decided not to join in the litigation or caveat." They are not legally entitled to share the proceeds of the contract.
The judgment is
Reversed.
Hutson v. . Sawyer , 104 N.C. 1 ( 1889 )
In Re Will of McLelland , 207 N.C. 375 ( 1934 )
Syme v. . Broughton , 85 N.C. 367 ( 1881 )
Reynolds v. . Reynolds , 208 N.C. 578 ( 1935 )
Mills v. . Mills , 195 N.C. 595 ( 1928 )
Price v. . Price , 133 N.C. 494 ( 1903 )
Holt v. . Ziglar , 159 N.C. 272 ( 1912 )
In Re Will of Brown , 194 N.C. 583 ( 1927 )
Bohannon v. . Trotman , 214 N.C. 706 ( 1939 )
In Re Westfeldt , 188 N.C. 702 ( 1924 )
In Re Estate of Himmelfarb , 345 A.2d 477 ( 1975 )
Wagner v. Honbaier , 248 N.C. 363 ( 1958 )
Keesler v. North Carolina National Bank , 256 N.C. 12 ( 1961 )
In Re Pendergrass'will , 251 N.C. 737 ( 1960 )
In Re Cox'Will , 254 N.C. 90 ( 1961 )
Sigmund Sternberger Foundation, Inc. v. Tannenbaum , 273 N.C. 658 ( 1968 )
Cook v. Morrison , 202 Okla. 693 ( 1950 )
In Re Will of Brock , 229 N.C. 482 ( 1948 )
In Re Will of West , 227 N.C. 204 ( 1947 )
Redwine v. . Clodfelter , 226 N.C. 366 ( 1946 )
State v. . Griggs , 223 N.C. 279 ( 1943 )
Petty v. Call , 599 S.W.2d 791 ( 1980 )
Pulliam v. Thrash , 245 N.C. 636 ( 1957 )